Judge Rules That Construction Can Proceed On Dakota Access Pipeline

Native Americans march to a sacred site on Sunday that they say was disturbed by bulldozers working on the Dakota Access Pipeline, near the encampment where hundreds of people have gathered to join the Standing Rock Sioux tribe's protest.

Sep 09, 2016

by:

Merrit Kennedy

Construction on the controversial Dakota Access Pipeline is allowed to proceed, except in one area in North Dakota of particular sensitivity to a Native American tribe.

That's the result of two separate developments Friday — a federal court decision, and a statement by three federal agencies.

A federal judge denied the Standing Rock Sioux tribe's request for an injunction that sought to temporarily stop construction on the pipeline, set to carry crude oil across four states. Immediately after the ruling, the federal agencies announced a halt to work in one area significant to the tribe.

The Dakota Access Pipeline route crosses under the Missouri River near the Standing Rock Sioux Reservation, which straddles the Dakotas. The tribe says this puts its drinking water and sacred lands at risk. Outrage over the pipeline has galvanized Native American tribes and environmentalists across the U.S.

The Standing Rock Sioux tribe says it wasn't adequately consulted by the federal agency that authorized permits for the pipeline, and sued the U.S. Army Corps of Engineers in July.

In Friday's ruling, U.S. District Judge James E. Boasberg acknowledged that "the United States' relationship with the Indian tribes has been contentious and tragic." But he went on to say that the Army Corps "likely complied" with its obligation to consult the tribe, adding that the tribe "has not shown it will suffer injury that would be prevented by any injunction the Court could issue."

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On the heels of that ruling, however, the Justice Department, the Department of the Army and the Interior Department announced that construction in an area of Army Corps' land that is particularly significant to the tribe will not go forward pending further evaluation.

"The Army will not authorize constructing the Dakota Access pipeline on Corps land bordering or under Lake Oahe until it can determine whether it will need to reconsider any of its previous decisions regarding the Lake Oahe site under the National Environmental Policy Act (NEPA) or other federal laws," the statement read.

The agencies asked the pipeline company to "voluntarily pause all construction activity within 20 miles east or west of Lake Oahe."

"This case has highlighted the need for a serious discussion on whether there should be nationwide reform with respect to considering tribes' views on these types of infrastructure projects," the agencies said. They noted that the federal government will "invite tribes to formal, government-to-government consultations" this fall to improve communication.

The $3.8 billion Dakota Access Pipeline is set to span some 1,200 miles, from the Bakken oil fields in North Dakota to Patoka, Ill. According to Dallas-based pipeline developer Energy Transfer Partners, "it will transport approximately 470,000 barrels per day with a capacity as high as 570,000 barrels per day or more — which could represent approximately half of Bakken current daily crude oil production." The company says that, pending regulatory approvals, oil was to start flowing late this year.

The pipeline's original route crossed the Missouri River near Bismarck, N.D., The New Yorker reported, "but authorities worried that an oil spill there would have wrecked the state capital's drinking water. So they moved the crossing to half a mile from the reservation, across land that was taken from the tribe in 1958, without their consent."

The Standing Rock Sioux tribe says the pipeline construction could desecrate sacred lands, including grave sites and culturally important stone features. And the tribe fears that any pipeline leak at the Missouri crossing, which lies just upstream of the reservation, could contaminate crucial drinking water.

Tribal leaders had argued that they weren't included in discussions during the planning process for the Dakota Access Pipeline. "My nation's history is at risk because the pipeline builders and the Army Corps failed to consult the tribe when planning the pipeline, and routed it through areas of cultural and historical significance, which will be destroyed," David Archambault II, chairman of the Standing Rock Sioux tribe, said in a court filing.

For its part, the company has maintained that the pipeline is safe — indeed, Energy Transfer Partners says government statistics show "pipelines are the safest mode of transporting crude oil." It adds that the Dakota Access "will be built and operated using the most advanced technology and monitoring systems to make it even safer."

And the pipeline would reduce the use of rail and truck transport of crude oil, according to Energy Transfer Partners.

The Standing Rock Sioux sued the U.S. Army Corps of Engineers in July, accusing it of improperly granting permits authorizing the construction. Acting on the tribe's behalf, the environmental group Earthjustice filed the lawsuit with the U.S. District Court for the District of Columbia.

It "alleges that the Corps violated multiple federal statutes, including the Clean Water Act, National Historic Protection Act, and National Environmental Policy Act, when it issued the permits," according to Earthjustice. A subsidiary of Energy Transfer Partners, Dakota Access LLC, is also party to the lawsuit.

The tribe sought the injunction to halt construction along portions of the pipeline — those authorized by the Army Corps — while the lawsuit plays out.

In Friday's ruling, Boasberg said the tribe had not demonstrated that it would be harmed by construction in areas that received permits from the Army Corps. "The Tribe has not carried its burden to demonstrate that the Court could prevent damage to important cultural resources by enjoining the Corps' DAPL-related permitting," the decision reads.

The tribe says it will appeal.

Separately, in response to the ongoing construction work, the tribe filed an emergency motion on Sunday, seeking protection for a specific area along the planned route that contains sites sacred to the tribe. The judge issued a temporary restraining order for a portion of the area on Tuesday, effectively halting construction. It was less than the tribe had requested and expires at midnight Friday night.

Tribe members and their supporters have been camping along the border of the reservation near the construction site for several months, and the demonstration grew significantly when construction in the area began in early August. They call themselves water protectors, rather than protesters.

The gathering has attracted Native Americans from tribes across the country in a show of solidarity with the Standing Rock Sioux. Numbers have grown from a handful to thousands.

Construction on the controversial section of the pipeline began in mid-August. It halted briefly amid protests but started up again earlier this month, a day after the tribe declared to the court that it had recently discovered areas along the pipeline route that are culturally and spiritually significant. The tribe said in a court filing that the work "desecrated and destroyed" the sacred sites.

Tensions dramatically escalated over the weekend, resulting in violence. "What happened is some protesters who've been camped out near this construction area broke through a fence to access this construction site and were met with some private security guards and guard dogs hired by the pipeline company," as reporter Amy Sisk of the public radio collaboration Inside Energy said in an NPR Live discussion on Facebook.

"Law enforcement says the protesters attacked the security guards and the dogs," she said, adding that protesters say the dogs "actually bit some of the protesters."

And ahead of Friday's ruling, David Archambault II, chairman of the tribe, called for calm. "We call upon all water protectors to greet any decision with peace and order," he said in a statement on the tribe's Facebook page. "Even if the outcome of the court's ruling is not in our favor, we will continue to explore every lawful option and fight against the construction of the pipeline."

Sisk tells NPR's Newscast unit that "solidarity protests are expected to continue across the country."

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